by C.A.Chandraprema Courtesy The Island

September 2, 2017, 7:37 pm

Former Army Commander Jagath Jayasuriya completed his stint as Sri Lanka’s Ambassador to Brazil and arrived in Sri Lanka last week. It would appear that just as he was leaving Brazil, some international human rights groups had filed war crimes lawsuits against him in Brazil and Colombia. According to international news reports on the matter, the petitioners had alleged that Jayasuriya oversaw military units that attacked hospitals and killed and tortured thousands of civilians. There was of course no risk of Jayasuriya being arrested in Brazil because he had diplomatic immunity as an Ambassador. But the petitioners obviously wanted to make it untenable for him to remain in that position. However, Jayasuriya didn’t really lose anything because his term as Ambassador was over in any case.

The main figure behind this move is apparently Yasmin Sooka of the self styled ‘International Truth & Justice Project, Sri Lanka’, which claims to have obtained sworn statements along with evidence gleaned from medical and psychiatric examinations from Tamil individuals who had arrived in the UK claiming asylum. They had claimed to have been arrested, blindfolded, held in darkened cells and subject to sexual attacks and repeated interrogations.  A woman had claimed she had been abducted in a white van, beaten with electric cables and suffocated, using a plastic bag containing petrol and later raped. Another woman had claimed to have been gang raped. A man had claimed to have been anally and orally raped by a captor. About half the people interviewed by Sooka’s organization had claimed to have attempted suicide after leaving Sri Lanka.

Former Army Commander Jagath Jayasuriya

On the face of it, the evidence that Yasmin Sooka’s organization claims to have ‘unearthed’ looks like the usual stories related by asylum claimants trying not to get expelled from Britain. It goes without saying that a refugee status claimant will say what is calculated to get them what they want. All those arriving in Europe seeking refugee status, claim to have been tortured and raped. Of the refugees arriving from Syria and other parts of the Middle East who are mostly male, a remarkable number claim to have been sodomized by their captors – so much so that one would think they had arrived from Sodom and Gomorrah rather than from any part of the Muslim Middle East. Given the number of adult Syrian males who claim to have been raped, one would think that the intermediary in the Middle East peace talks should be the gay and lesbian movement and not the UN, given the apparent preponderance of Sodomites among the armed forces and terrorists of the Middle East.

Most Western nations are now wise to the false claims of torture and rape being made to obtain refugee status. They know that many refugees deliberately cause scars on their own bodies to give credence to their asylum applications. There is even a term coined for this called ‘self-infliction by proxy’ or SIPB. Some refugee claimants sport scars that make them look like escapees from medieval torture dungeons. The British House of Lords has rejected refugee applications from Sri Lankan Tamils on the grounds that the scars they have are SIPB injuries. The House of Lords has even dismissed reports obtained from medical experts obviously because the medical reports may only provide details of the means by which the scars were caused and not whether it was voluntary or involuntary. Even though the ‘victim’s accounts’ and the ‘medical reports’ that professional human rights activists like Yasmin Sooka collect may not stand up to scrutiny by the UK immigration authorities or the courts, they can be put to a different use such as by being used as purported evidence to file petitions in various courts against prominent Sri Lankan individuals and that is obviously what has happened in this case.

JJ in high company

Be that as it may, by having a criminal case filed against him in a foreign court, our former army commander Jagath Jayasuriya joins an elite group of South Asians including Sonia Gandhi and Narendra Modi who have been arraigned in foreign courts for various crimes including mass killings. In September 2012, a US court tried to serve summons on Sonia Gandhi while she was receiving treatment at the Sloan-Kettering Cancer Centre in New York to face court on charges of protecting and rewarding the perpetrators of the anti-Sikh riots of 1984. This was due to a suit filed by a Sikh NGO in the Brooklyn District Court under the Alien Tort Statute and the Torture Victim Protection Act of 1992 which give the victims of human rights abuses overseas the right to sue the perpetrators in the US. Sonia escaped the American justice system by saying that she did not receive the summons.

After she made her way back to India, the Brooklyn federal court asked Sonia to file answers before a given date to charges of “shielding, protecting and rewarding” perpetrators of the 1984 Anti-Sikh riots in the wake of Indira Gandhi’s assassination and even asked Sonia Gandhi to submit a copy of her passport to the American court for them to verify whether she was actually not in the USA between 2 and 9 September 2012 when the courts wanted to serve her with the summons that she claims she never got. The US court wanted to examine the entry and exit stamps on her passport!

The Americans have routinely treated the Indians like coolies. How many Sri Lankans are aware that the former Indian President Abdul Kalam has been searched at US airports twice, on one occasion airport officials had boarded the plane he was in and taken away the shoes and jacket he was wearing to screen for explosives. This was the former President of the world’s largest democracy! In June 2014, a US appeals court in New York dismissed the case filed by the Sikh NGO against Sonia Gandhi and the latter’s lawyer was to say that the US appeals court had delivered a ‘historic’ ruling and that the judges have upheld a nation’s sovereignty by declaring Gandhi free of any fault. So now it’s the courts in foreign countries that have to preserve India’s sovereignty! Undoubtedly, India was far better off under the British Raj than in her alliance with the USA.

The way the Americans have treated Narendra Modi, the present Prime Minister of India, has been no different. In 2005, the US denied Modi a visa under an obscure U.S. law on religious freedom. He was a persona non grata until he became Prime Minister of India. The US political establishment did their best to prevent him from becoming PM too. On 18 November 2013, a group of Congressmen representing both the Republican and Democratic parties presented in the US House of Representatives, a resolution against Modi. This US House of Representatives motion bearing No: 417 against Modi and the BJP was presented to Congress by Congressman Joe Pitts, a Republican.  Several other Republican Congressmen Steve Chabot, James Sensenbrenner, Frank Wolf, Mark Meadows, Tim Huelskamp  co-sponsored the resolution. Congressmen Maurice Ellison, John Conyers, Jim McGovern, Albio Sires, Jim Moran, John Lewis, Raul Grijalva, Jared Polis and Congresswoman Betty McCollum who also co-sponsoring this resolution were all Democrats. This shows that both political parties in the USA were of one mind with regard to Narendra Modi in particular and the BJP in general.

This resolution which was titled “On the need to protect the rights and freedoms of religious minorities in India” made a string of allegations against the Hindu nationalist movement and Narendra Modi alleging that they had advanced a ‘divisive and violent agenda’ that has harmed the social fabric of India. Among the specific charges against the Hindu nationalists were the destruction of the 16th-century Babri Mosque in Ayodhya, on December 6, 1992, the communal violence against Muslims in Gujarat, after 58 Hindus were burnt alive in a train coach fire on February 27, 2002 which left an estimated 2,000 dead and 100,000 displaced, the victimization of Christians in Gujarat, and the destruction of churches. The US held Narendra Modi personally responsible for these acts while alleging that he has acted against whistleblowers while making no effort to prosecute those responsible for the anti-Muslim violence. One of the aims of this resolution was to appeal to the Indian voters not to elect him PM in 2014.

One would think that things would change once Modi became Prime Minister, but it was not so. After Modi became PM and was to make his first visit to the USA in September 2014, the U.S. Federal Court of the Southern District of New York issued a summons against him regarding his alleged involvement in the 2002 riots in Gujarat. The summons required him to respond within 21 days of receipt, barring which the court will decide in default against Modi for the damages sought by the plaintiffs. The summons charged PM Modi with committing crimes against humanity, extra-judicial killings, torture and inflicting mental and physical trauma on the victims, mostly from the Muslim community. This lawsuit was filed by the American Justice Center (AJC), a human rights organization representing two survivors of the violence of Gujarat 2002.

Given the manner in which India’s Prime Minister and the leader of its ruling party have been treated by the USA which is supposed to be India’s closest ally, the case filed against Jagath Jayasuriya a former Sri Lankan army commander in far off Brazil pales into insignificance. This is the mad world we live in today and we have to adjust accordingly.

The Disappearances Bill

One thing this episode highlights is the need to bury forever the yahapalana government’s Bill to give effect to the International Convention for the Protection of All Persons from Enforced Disappearance. This was to be taken up for debate in Parliament in early July this year, but the government postponed the debate due to protests by the Joint Opposition and pressure from the Buddhist establishment. The purpose of this Bill was to give effect in Sri Lanka to the provisions of the International Convention against Enforced Disappearances which the government signed in 2016. Even though many people may think this is just an international convention to criminalize enforced disappearances, it goes far beyond that. In fact the most important parts of the International Convention on Enforced Disappearances relates to extraditing suspects in cases relating to enforced disappearances.

Article 10 of this Convention makes it clear that any State in whose territory a person (who can be a citizen of any other member state) suspected of having committed an offence of enforced disappearance is present, can take that person into custody. According to Article 11, after making an arrest in that manner, the member state concerned can take one of three alternative courses of action – (a) extradite that person to another country in accordance with its international obligations, (b) prosecute that person under its own laws or (c) hand him over for prosecution to an international criminal tribunal whose jurisdiction that member state has recognized. These two Articles of the International Convention Against Disappearances read together gives a clear picture of the action that any member state of this Convention can take against one of its own citizens or the citizen of any other member state who may be present in its territory.

Article 13 of the international convention also states that any member state may request the extradition of a person suspected of being responsible for enforced disappearances in any other member state and all member states are supposed to respect such requests for extradition. Because Sri Lanka is now a signatory to the International Convention for the Protection of All Persons from Enforced Disappearance, the provisions of Articles 10, 11 and 13 form a part of our obligations under this Convention. In this context, Clauses 8 and 21 of the ‘Bill to give effect to the International Convention for the Protection of All Persons from Enforced Disappearance’ which was tabled in Parliament by Prime Minister Ranil Wickremesinghe assumes special importance. Clause 21 of the Bill says that the Minister may issue guidelines or directions to give full effect to Sri Lanka’s international obligations under the Convention.

Clause 8 says that where a request is made to the Government of Sri Lanka, by the Government of a Convention State for the extradition of any person accused or convicted of causing an enforced disappearance, the Minister shall, on behalf of the Government of Sri Lanka, forthwith notify the Government of the requesting State of the measures which the Government of Sri Lanka has taken, or proposes to take, for the prosecution or extradition of that person for that offence. When you read Articles 10, 11 and 13 of the International Convention Against Enforced Disappearances together with Clauses 8 and 21 of the Bill that had been presented to Parliament to give effect to that convention in Sri Lanka, it is clear that once the Convention becomes operational in Sri Lanka, foreign countries which are members of the International Convention will have complete jurisdiction over Sri Lankans who are alleged to have been involved in causing enforced disappearances in Sri Lanka.

Even if a person believed by foreign states to have been involved in enforced disappearances in Sri Lanka happens to be in Sri Lanka, any interested foreign government can request the Sri Lankan government to extradite that person to their country to be prosecuted or handed over to an international criminal tribunal to be prosecuted. By signing and ratifying the International Convention against Enforced Disappearances Sri Lanka has accepted that its citizens can be handed over to an international criminal tribunal for prosecution under Article 11. Nobody will be able to argue that the ICC does not have the jurisdiction to prosecute a Sri Lankan handed to them by a third country because Sri Lanka has granted authority to all member states of the International Convention against Enforced Disappearances to take action against Sri Lankans for offences under this Convention and one of the actions specifically sanctioned is the handing over of suspects to an international criminal tribunal.

The Pinochet episode

Former Chilean President Augusto Pinochet was arrested in London on 16 October 1998 while receiving medical treatment at a hospital there. Ironically, he was arrested under the provisions of the International Convention Against Torture which Chile had joined during his tenure as President which highlights the fact that every government must be mindful of what they sign and ratify. The way Pinochet’s arrest in Britain was engineered by professional human rights activists was by filing a motion for an arrest warrant before the Spanish National Court in which a Sonia-Modi style suit against Pinochet had been filed earlier by people claiming to be victims of repression under him. This arrest warrant was sent to the UK authorities for action under the extradition laws.

What saved Pinochet was a House of Lords Judgment in December 1998. Earlier in November 1998, the House of Lords has decided in a three to two division, to allow the arrest warrant issued by a British Magistrate to stand. It was subsequently discovered that one of the Law Lords who had declared against Pinochet was closely associated with Amnesty International, one of the human rights groups that was pushing for his arrest and prosecution. Lord Hoffmann’s wife had been working at the International Secretariat of Amnesty International for decades in administrative positions and Lord Hoffmann himself was found to be an unremunerated Director and Chairperson of Amnesty International Charity Limited, a registered charity belonging to Amnesty International.

In December 1998, Pinochet lodged a petition with the House of Lords asking that the order of November 1998 should be set aside completely or the opinion of Lord Hoffmann should be declared to be of no effect (which would deprive the judgment against him of its majority). The House of Lords declared that “the links between Lord Hoffmann and AI were such that there was a real danger that Lord Hoffmann was biased in favour of AI or alternatively that such links give rise to a reasonable apprehension or suspicion on the part of a fair minded and informed member of the public that Lord Hoffmann might have been so biased”. The House of Lords declared that the fundamental principle is that a man may not be a judge in his own cause. Pinochet won his case and went back to Chile where he died in 2006.

The point to note here is that despite being a Law Lord, Hoffmann never thought it necessary to reveal his relationship with Amnesty International and recuse himself as any self respecting judge would if there was a conflict of interest in relation to a case being heard before him. No one else on the bench or at the hearing before him knew of his close links with Amnesty International and it came to light purely fortuitously. All do-gooders in their self righteousness tend to be forgetful of their own obligations – so accustomed are they to playing investigator, judge jury and executioner all in one.

This is a part of the human rights nightmare that the world faces. In an ordinary commercial case or criminal case in Britain, would a distinguished Law Lord have ‘forgotten’ or failed to declare a conflict of interest by sitting in judgment over a case in which one of the interested parties was closely connected to him? The cavalier attitude that all human rights activists display in the case of persons they demonize before the world was apparent in the way Lord Hoffman kept secret his association with Amnesty International throughout the proceedings against Pinochet. Given the fact that the opinion on the bench was divided, Hoffman obviously realized that his vote counted and he kept his association with AI under wraps. This is the kind of gross injustice that can occur in cases where people are declared guilty in public before a court gets to hear the case. Fortunately for Pinochet, he was arrested in Britain where the courts are principled enough to reverse a faulty judgment.

In any event, how can any country ever hope to conduct a trial regarding a crime committed in another country? In Pinochet’s case Britain was not going to hear any case against him. The decision before Britain was whether they are going to arrest and extradite him to Spain. But in a case like that faced by Sonia Gandhi and Narendra Modi in the USA, if things had got to the trial stage, would justice have ever prevailed? How is an American court supposed to hear a case against the nationals of a foreign country over an incident that took place in a foreign country? Is such an exercise even logistically possible? Who’s going to spend money taking witnesses to and fro? If only one side is able to bring witnesses and the other side is not able to do so because they can’t afford it, that will be a serious miscarriage of justice.

Filing a court case against Jagath Jayasuriya in Brazil shows how far this insanity has gone. It takes days and several transits just to get to Brazil even by air. How is a court in Brazil going to hear a case over events that took place in the Vanni in Sri Lanka?